News and Thoughts on Self-Defense

Montana Self-Defense Law – 2011 Statutes

Montana self-defense law is codified in Montana Code Annotated (MCA) of 2011. The statutes must be read in conjunction with the cases decided by the Montana Supreme Court on self-defense issues. The statutes are listed as a starting point for some information on Montana’s justifiable use of force law. For Montana legal questions, I recommend that you seek legal advice from an attorney licensed in Montana. As federal Judge Lovell said in a hearing to a self-represented party many years ago, practicing law without a license is similar to taking out your appendix without being a doctor. I don’t recommend it.

Also, criminal law differs from state to state. Tribal and federal law may also apply. Even statutes that are similar may be interpreted in a different way in another jurisdiction.

MONTANA STATUTES ON JUSTIFIABLE USE OF FORCE

Montana Code Annotated (MCA) 2011

45-3-101. Definitions. (1) “Force likely to cause death or serious bodily harm” within the meaning of this chapter includes but is not limited to: (a) the firing of a firearm in the direction of a person, even though no purpose exists to kill or inflict serious bodily harm; and (b) the firing of a firearm at a vehicle in which a person is riding. (2) “Forcible felony” means any felony which involves the use or threat of physical force or violence against any individual.

45-3-102. Use of force in defense of person. A person is justified in the use of force or threat to use force against another when and to the extent that the person reasonably believes that the conduct is necessary for self-defense or the defense of another against the other person’s imminent use of unlawful force. However, the person is justified in the use of force likely to cause death or serious bodily harm only if the person reasonably believes that the force is necessary to prevent imminent death or serious bodily harm to the person or another or to prevent the commission of a forcible felony. History: En. 94-3-102 by Sec. 1, Ch. 513, L. 1973; R.C.M. 1947, 94-3-102; amd. Sec. 1643, Ch. 56, L. 2009.

45-3-103. Use of force in defense of occupied structure. (1) A person is justified in the use of force or threat to use force against another when and to the extent that the person reasonably believes that the use of force is necessary to prevent or terminate the other person’s unlawful entry into or attack upon an occupied structure. (2) A person justified in the use of force pursuant to subsection (1) is justified in the use of force likely to cause death or serious bodily harm only if: (a) the entry is made or attempted and the person reasonably believes that the force is necessary to prevent an assault upon the person or another then in the occupied structure; or (b) the person reasonably believes that the force is necessary to prevent the commission of a forcible felony in the occupied structure. History: En. 94-3-103 by Sec. 1, Ch. 513, L. 1973; R.C.M. 1947, 94-3-103; amd. Sec. 1644, Ch. 56, L. 2009; amd. Sec. 4, Ch. 332, L. 2009.

45-3-104. Use of force in defense of other property. A person is justified in the use of force or threat to use force against another when and to the extent that the person reasonably believes that the conduct is necessary to prevent or terminate the other person’s trespass on or other tortious or criminal interference with either real property, other than an occupied structure, or personal property lawfully in the person’s possession or in the possession of another who is a member of the person’s immediate family or household or of a person whose property the person has a legal duty to protect. However, the person is justified in the use of force likely to cause death or serious bodily harm only if the person reasonably believes that the force is necessary to prevent the commission of a forcible felony.

45-3-105. Use of force by aggressor. The justification described in 45-3-102 through 45-3-104 is not available to a person who: (1) is attempting to commit, committing, or escaping after the commission of a forcible felony; or (2) purposely or knowingly provokes the use of force against the person, unless: (a) the force is so great that the person reasonably believes that the person is in imminent danger of death or serious bodily harm and that the person has exhausted every reasonable means to escape the danger other than the use of force that is likely to cause death or serious bodily harm to the assailant; or (b) in good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that the person desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

45-3-106. Use of force to prevent escape. (1) A peace officer or other person who has an arrested person in custody is justified in the use of force to prevent the escape of the arrested person from custody that the officer or other person would be justified in using if the officer or other person were arresting the person. (2) A guard or other peace officer is justified in the use of force, including force likely to cause death or serious bodily harm, that the guard or officer reasonably believes to be necessary to prevent the escape from a correctional institution of a person whom the guard or officer reasonably believes to be lawfully detained in the institution under sentence for an offense or awaiting trial or commitment for an offense. History: En. 94-3-106 by Sec. 1, Ch. 513, L. 1973; R.C.M. 1947, 94-3-106; amd. Sec. 1647, Ch. 56, L. 2009.

45-3-107. Use of force by parent, guardian, or teacher. A parent or an authorized agent of a parent or a guardian, master, or teacher is justified in the use of force that is reasonable and necessary to restrain or correct the person’s child, ward, apprentice, or pupil.

45-3-108. Use of force in resisting arrest. A person is not authorized to use force to resist an arrest that the person knows is being made either by a peace officer or by a private person summoned and directed by a peace officer to make the arrest, even if the person believes that the arrest is unlawful and the arrest in fact is unlawful.

45-3-109. Execution of death sentence. A person who puts a person to death pursuant to a sentence of a court of competent jurisdiction is justified if the person acts in accordance with the sentence pronounced and the law prescribing the procedure for execution of a death sentence.

45-3-110.No duty to summon help or flee. Except as provided in 45-3-105, a person who is lawfully in a place or location and who is threatened with bodily injury or loss of life has no duty to retreat from a threat or summon law enforcement assistance prior to using force. The provisions of this section apply to a person offering evidence of justifiable use of force under 45-3-102, 45-3-103, or 45-3-104.

History: En. Sec. 1, Ch. 332, L. 2009.

45-3-111. Openly carrying weapon — display — exemption. (1) Any person who is not otherwise prohibited from doing so by federal or state law may openly carry a weapon and may communicate to another person the fact that the person has a weapon. (2) If a person reasonably believes that the person or another person is threatened with bodily harm, the person may warn or threaten the use of force, including deadly force, against the aggressor, including drawing or presenting a weapon. (3) This section does not limit the authority of the board of regents or other postsecondary institutions to regulate the carrying of weapons, as defined in 45-8-361(5)(b), on their campuses.

History: En. Sec. 2, Ch. 332, L. 2009.

45-3-112. Investigation of alleged offense involving claim of justifiable use of force. When an investigation is conducted by a peace officer of an incident that appears to have or is alleged to have involved justifiable use of force, the investigation must be conducted so as to disclose all evidence, including testimony concerning the alleged offense and that might support the apparent or alleged justifiable use of force.

History: En. Sec. 3, Ch. 332, L. 2009.

45-3-115. Affirmative defense. A defense of justifiable use of force based on the provisions of this part is an affirmative defense.

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